Ruminating on Another 'Accommodation'

During a Washington press conference Tuesday, Department of Health and Human Services Secretary Kathleen Sebelius told reporters the Obama administration plans to issue a rule "in the near future" on its compromise plan on contraception coverage that will apparently resolve some outstanding problems associated with the "accommodation" offered by the president on Feb. 10. Under the current proposal, which has not proved satisfactory to U.S. bishops, insurance providers, not employers would "pay" for newly required contraception services, including sterilization and prescriptions the bishops describe as abortifacients. But that accomodation leaves Catholic agencies that are self-insured in an awkward position; the administration seems to be trying to respond. Sebelius apparently is talking to a lot of folk about how to reach a workable compromise. Politico reports she is meeting with insurers, clergy and union and health leaders to get feedback on how to make a final resolution work.

"We’ve begun outreach," Sebelius said. "I have talked to Catholic health leaders, I’m reaching out to priests. We’re also talking to union leaders, we’re talking to our partners at labor who run the self-insured plans to figure out a strategy." All well and good and talking is preferable to shouting, but this sudden enthusiasm for dialogue begs the question: what exactly was her department and the Obama administration doing during the months the interim language on contraception and the now much-debated narrow religious exemption hung out there in the cultural wilderness?

It would seem that lengthy interregnum would have been the most opportune time for these conversations to have taken place, that is, before launching a lacerating fight with and within the Catholic Church. What exactly was the "comment" period for when a completely unaltered exemption was ultimately issued and who among the many who submitted appeals for a broader exemption was the administration talking to, working toward its decision to release the exemption unchanged, if anyone? And who did they consult to reach their "compromise" accomodation on Feb. 10? They clearly did not run any trial ballons by the U.S. bishops, their primary counterforce in this cultural conflict. And who, finally, are they talking to now to work towards yet another conclusion that will somehow be acceptable to all parties, which, at this ungainly table, now includes the U.S. bishops, the Catholic Health Association, CCUSA and Planned Parenthood and NOW?

Sebelius assures: "We intend to propose a rule in the near future on some implementation strategies that I think do exactly what the president says—which is make sure women have preventive health services and respect religious freedom." Whatever your position on the contraception/religious liberty conflict, I would have to say that this fiasco is mainly attributable to some incredibly poor political instincts and follow through by the Obama administration. Maybe they have learned from their mistakes and Sebelius is right, they are working toward a solid conclusion, but I see little reason to be confident about that based on performance so far. Let's hope at this juncture the HHS and the administration have begun talking to people who don't necessarily agree with them on this policy. It's hard to reach a real compromise if you don't talk to the people you need to reach a compromise with.

Frankly, I don't see the need for a persona attack or snippiness. I am responding to your arguments, not trying out for any perceived position. And I stand by my arguments that your understanding both of the nature of civil society, the effect of the HHS mandates and criticisms of the Bishops' and OTHER Catholics' objections to them is short-sightned, unfair and based on a misunderstanding of those arguments. If that's "pompous" apparently you're not used to people disagreeing with you.

Easy with the pompous tone Josh: you're not the smartest guy on the web. Nominations are closed for that position.

You undoubtedly have a clever mind and, from your frequent and lengthy postings, have strong opinions. Your understanding of our democratic republic (not just "republic) is quite narrow. The flowering of republicanism during the Age of Revoultion underscored the importance of citizenship and civic realm. The suspicion of antidemocratic/unrepresentative government throughout American history is matched by understanding that government was not an external, foreign entity as you make it to be. To argue as you do is a selective reading of eighteenth and nineteenth century political theorists. Indeed, the clutter of money is making us less democratic and taking away our ability to engage in the civic realm but your portrayal of President Obama crushing everyone who disagrees with him is a flawed understanding of checks & balances, the Bill of Rights, and the way politics works today.

I am "complaining" about the USCCB's understanding of and role in the HHS guidelines. I think they are on very shaky legal and historical ground (BTW, you've mentioned the HOSANNA-TABOR decision but it's not on point). We've discussed this at length on IAT. There are limits to the demand for "relgious freedom." Ask the Amish who pay taxes or the man who wants to marry three women or the parents who will not seek medical assistance for a child on religious grounds. My point about the Church taking lots of taxpayer dollars is that the USCCB et al. have taken their strident position so far as to demand these funds even when they are discriminating against gays and lesbians. It really does make them seem opportunistic and inconsistent.

Do I "plant my flag" when it suits me? Here you have confused things in two ways. First, the HHS guidelines are just that- the USCCB is not "teaching" anything-they are lobbying. Second, in my support for Catholic social teachings I never actually write that other Catholics must adhere to them in some specific way or face, say, excommunication (or at least the frequent denunciation that they aren't really Catholic, e.g.,your mention of "Catholic identity"). I take my faith seriously including the freedom of conscience.

No, Vince, actually the government is not "us." You should bone up on your social compact theory. The governed consent to being governed in exchange for a circumscribed set of limits on the governing entity. This "compact" is between two separate entities. This means, of course, we are a republic, not a "demos." And along with this reality is the notion that "civil society" is made up of various and divergent "polities" that mediate our social relationships. The theory used to be that we wanted this civil society to be as diverse and "rich" as possible. Pres. Obama's view appears to be we only want this civil society to be composed of individuals and institutions that agree with me on certain hot-button issues.

Second, I find it most curious that on a comment thread about the HHS accomodation, you now protest that in fact you aren't complaining about the HHS mandates at all, but rather about some more generalized grievance with how Catholic institutions take federal money then "scream" about separation of Church and state. Be that as it may, your generalization is a gross simplication and misconstrual of the various policy and legal arguments about conscience rights, the freedom of religion and the establishment clause of the First Amendment. These are NOT all reducible to "separation of church and state." If you'd like to see a sophisticated primer on these issues, I'd suggest the Supreme Court's recent Hosanna-Tabor opinion - in which the Court rejected unaninmously the Administrations' crimped (to be generous) reading of the First Amendment's protection of religious liberty.

Third, I can't help but observe anecdotally that you seem quick to plant your flag on the ground of Catholic identity when you perceive it to justify a political position you hold (say on unions and economic life) but are quick to turn around and castigate similar arguments when the position you hold seemingly contradicts Catholic identity. Certainly the uneasy discomfort of holding such seemingly discordant positions invites some reflection on what the faith might be challenging me to rather than as serving as a prooftext for my political opinions?

When I wrote "'have been rebuffed in their efforts to take government money and continue to discrimination.' I was not referring to the HHS rules-I was referring to the general practice of Catholic institutions accepting goobs of taxpayer dolllars but then screaming separation of church & state. There are specific examples of how this clashes, e.g., Catholic adoption agencies taking government funds but then insisting that they can discriminate against gay couples attempting to adopt a child.

''have been rebuffed in their efforts to take government money and continue to discrimination.''

The applicability of the HHS mandate is NOT premised on the institution accepting federal funds - read the rule and that is clear.

Beyond that small fact, I'm always perplexed by liberals arguing that the government should allow participation in the public square by individuals and institutions that first agree with their political positions.

The USCCB, diocesan newspapers, and conservative media figures have been hammering away the last month or so that they have Catholics and most Americans on their side. Not even close. The laity don't hold the same positions on public policy and contraception as the hierarchy. Talk about an absence of sensus fidelium.

For all the haranguing from the pulpit, only a minority of Catholics agree with the bishops: the Kaiser Poll just released yesterday reports that only 25 percent of Catholics believe that the HHS-birth control issue is one about religious liberty (26 pcercent thought it was more of an issue of women's rights and 27 percent reported it was about both).

The poll also found that 63 perecent support the inclusion of contraception coverage as part of required plans) [http://www.kff.org/kaiserpolls/upload/8281-F.pdf (pages 8-9)].

It's a perfectly valid criticism, certainly political and perhaps moral, that the Administration blundered in their original announcement of the HHS rule, and that they should have had a much more profound appreciation of how it would be viewed. But I think all of the remaining weight of the evidence indicts the Bishops as not dealing in good faith with this Administration, and seeking primarily to be political rather than moral actors. Thus, I think the opening post by Mr. Clarke is misguided. Many data points can be used, but I will emphasize three.First, the rhetoric used after the rule was initially announced sounded more like a Fox news broadcasts than moral pronouncements. The Bishops were plainly relishing a political fight in a reelection year, in the hopes of being kingmakers. However clumsy and ill thought out the rule may have been, perhaps even insensitive, there was no matching rhetoric from the other side.Further, however inadequate or imprecise the ''accommodation” may seem upon close examination, the Bishops essentially ''moved the goalposts”, to use the political vernacular, which is apropos given the manner in which this issue is being framed, by then saying that the issue is not even an accommodation of Catholic institutions, no matter how broadly defined, but with the contraception mandate itself, no matter who it applied to. That suggests bad faith negotiations and concerns for something other than religious liberty (Free Exercise Clause), but rather a desire to run afoul of the other half of the First Amendments religious protection, (the Establishment Clause), by advancing a moral objection shared only by the hierarchy of the Catholic Church and barely observed by its congregation, as the law of the land.

Finally, those of us who generally support the administration cannot help view all of these actions in the light of the Bishops’ incredible bad faith during the political fight to enact the Affordable Care Act, in which they continually struggled, in distinctions that would go beyond Jesuitical, to claim that the act promoted federal funding of abortion, when no fair-minded and honest individual could advance such a claim in good faith. For that reason, the Bishops opposed an attempt to extend health care coverage, which is strictly in line with their teaching.

At that point, it became clear that the leadership of the conference was primarily motivated in these pronouncements by the “Ad Majorem GOP Gloriam” animating principle.

This HHS and religious liberty thing is quite subtle. What strikes me are the moral examples used in the article: Birth control, gay marriage, adoption by same-sex couples. I cannot imagine the Church one hundred years from now holding these same positions. Kind of like the Pope taking a stand for slavery ten years before the U.S. finally abolished slavery, or the Pope taking a stand against freedom of religion only a fe generations or so before the Church embraced freedom of religion, or the pope taking a stand against democracy only a few generations before embracing democracy. Popes did all three of those things and the river of time left them in a backwater. Again and again, in the name of some principle or other, the hierarchy has made its Custer's Last Stand.

I would argue that the real story isn't the Obama Administration trying to marginalize religious organizations-it's that conservative prelates have come face-to-face to controversial issues such as gay marriage, same-sex couples adoption, and health care reform and they have been rebuffed in their efforts to take government money and continue to discrimination.

We live in a multicultural and pluralistic society. They don't like this.

"The way this has been handled has been choppy and surprisingly improvised, it seems to me, especially based on the outreach to the media. Seems Obama's critics want us to believe his administration is simultaneously long-game calculating and controlled and incompetent."

If you think my criticism of the Administration is that they are "incompetent." You are wrong. My criticism is that they are extremely competent in taking steps that weaken the role of insitutions affiliated with religious denominations. They their response to the criticism has been "choppy and surprisingly improvised" has a clear explanation: they underestimated the response on the HHS madate; they lost a Supreme Court case 9-ZERO (based on an argument the Administration's own former solicitor general characterized during oral argument as astoundingly narrow in its view of the freedom of religious, yet their progressive religious allies uttered hardly a word). But if one has been paying to attention to the various actions I previously mentioned, one knows that this Administration is very competent at enacting policies that undercut the vital roles these institutions play in our society.

I know it's easier to see people on your own side of the issue as making a "mistake" and being "sloppy" when accepting the reality of their intentions is harder. Believe me, as a Catholic Republican I've faced that temptation myself.

Now that the Blunt Amendment has failed, perhaps we can move to a solution that allows both sides to achieve their stated goals. The Obama Administration wants to see women have insurance coverage that provides access to a set of services without copayment. The bishops object to those services on moral grounds but their principal concern seems to be their legal obligation to provide that coverage, which they see as a violation of their religious liberty. It is the religious liberty aspect of this issue that needs to be resolved. The bishops themselves have asserted quite vehemently that it is the infringement on religious liberty and not access to contraception that is at issue here.On February 10, the Obama Administration proposed a solution that they thought might allow both sides to accomplish their goals. Archbishop Dolan reserved judgment about the merits of the proposal, but he hailed what he saw as the openness of the Administration to finding an acceptable solution. A few weeks later, Cardinal Dolan dismissed the proposal as “morally obtuse”. Our bishops have focused on a political solution that would preserve their liberty in a way that prevented the Administration from accomplishing its goals. Given today’s vote, some might call that “politically obtuse”.It is time for the bishops to suggest a “morally acute” solution. My suggestion would be an agreement that would allow employers with conscientious objections to shift their employees to the new health exchanges. This would require that the effective date of the mandate be delayed, but not for very long. The penalty imposed on employers not providing insurance would have to be waived if they provided financial support to their employees to help them purchase insurance on the exchanges. The tax treatment of such support should be considered. I would think that this approach would eliminate the issue of material participation. I may be wrong in thinking that; the bishops are the guardians of their own consciences. I have no idea how the Obama Administration would react to such an idea. But if they rejected it, the bishops would have a much stronger position with public opinion. Right now they seem committed to a course that poses great risks (see Cardinal George’s recent letter) with doubtful prospect of success.

Dolan was quoted as saying that he felt betrayed, because he felt that President "Obama had given him some assurances that he (Dolan) felt were not kept in the administration's announced contraception mandate."

Okay, Cardinal Dolan felt betrayed. That happens in policymaking & politics, especially in the drafting and comments phase. The adminsitration did owe the USCCB anything and it doesn't make the Obama Administration wrong or incompetent.

"Whatever your position on the contraception/religious liberty conflict, I would have to say that this fiasco is mainly attributable to some incredibly poor political instincts and follow through by the Obama administration. Maybe they have learned from their mistakes and Sebelius is right, they are working toward a solid conclusion, but I see little reason to be confident about that based on performance so far. Let's hope at this juncture the HHS and the administration have begun talking to people who don't necessarily agree with them on this policy. It's hard to reach a real compromise if you don't talk to the people you need to reach a compromise with."

I'll hold my breath for this to happen. It's an election year guys, and they know they need the activisits more than the fickle white Catholic vote. People waiting for them to 'see the light' have been living with their head in the sand - CRS grant revoked, Hosanna-Tabor, HHS, the DC School voucher program...it's time to see the handwriting on the wall. This is NOT some isolated 'mistake' from which the Administration must recover; it is a deliberate, thought-out pattern.

Today's vote on the Blunt resolution will be another marker in this culture war and the bishops backing of this ill-conceived (pun intended) notion may keep the fires alive as the bishops attempt to accomplish through legislation what they have not in the their teachings - convince Catholicsand the country that contraception is controversial and wrong. What a distraction for the nation as Israel makes threats about bombing Iran and the US role is unclear...as Afghanistan continues to blow... as schools continue to deteriorate... and as health care reform still leaves so many disenfranchised. This is deepest scandal of this controversy and the bishops are squarely responsible as they have truly circled the wagons and are not defending religious liberty as much as their wounded egos with what hss been called "pelvic politics."The Administration may have been very unwise to promote this now and the way they did, but the bishops are itching for a fight to win as other states pass gay marriage legislation which is giving them agida and they need a popular cause. The rhetoric I've seen in some of their letters taps into Patrick Henry oratory! Let's see what happens in Philadephia and their responses to that.

50% of workers are now contributing/paying partially on health insurance plans. So let's at least take 50% of the complaints off the religious liberty table the bishops are standing on. More and more plans are going to the worker paying part of the cost. Also I million workers have added their adult children to their health plans to age 26 [child bearing age] and the workers are paying for it. No BC for them even if they pay?... where is the Bishops'religious liberty position on that? Do the bishops complain that somehow the BC is coming out of their dime? wait they have no dime in hospitals and universities. Half the problem is solved now by workers paying .. the rest in a few years... next problem? Gabriel thinks Harvard will study this' entire episode' ...I rather Harvard study how the administration held Israel by the neck so as not to blow up the Middle East.

Kevin,You pose an excellent question. Wise and informed people like Leon Panetta (who is reported to have said "What's the point?") have also scratched their heads about how could the White House bungle this so badly.

Here's some speculation from political science and the theory of small group decisionmaking. Small groups, like the White House, develop a sense of superiority and infallibility because they are cohesive and closed to perspectives from outside the "inner circle." The cohesiveness may be based on ideology, political affiliation, personal loyalties, age, experience, and other factors. Alternative views may not be welcome or even available. This pattern can lead to disastrous decisions, such as Vietnam by the "best and the brightest" and the George W. Bush administration on the decison to go to war in Iraq.

In other words, we can't assume that intelligent people make intelligent decisions. We would expect the White House to have thoroughly vetted the decision with its lawyers, its congressional liaison people would have sought advice in Congress, Joe Biden would have been involved, as well as Chief of Staff Daily, the folks that do faith outreach, and of course with religious leaders across the country. To what degree did this happen and what was the result? To what degree did Did Sibelius direct the project? What was the President's role? These are important questions. In a year or two Harvard University may very welll produce one of its famous case studies from this entire episode. This one will be studied for many years among American universities. The good news: this has been a great education for democracy in America.

Mr. Clarke: President Obama met with Archbishop Dolan in November to discuss Dolan's concerns. Dolan got himself quoted in an NCR article about the meeting shortly after the meeting. Subsequently, when the Obama administration's initial contraception mandate was publicized, Dolan was quoted as saying that he felt betrayed, because he felt that President Obama had given him some assurances that he (Dolan) felt were not kept in the administration's announced contraception mandate.

"They clearly did not run any trial ballons by the U.S. bishops, their primary counterforce in this cultural conflict."

Oops-did I he write "cultural"? That's not correct-surely he meant "constitutional." Never mind: I think "cultural" is correct after all, inasmuch as this is a religious conservative war.

Kevin Clarke's public policy guidelines are simple: placate the USCCB in all matters. I take it from his "ungainly table" sentence that he would like it to include exactly two parties-the bishops and the government. Once everyone else is out of the room they can cook up a deal.

Catholic bishops should be out on the streets, not having cocktails with the powerbrokers.